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Religious belief in the workplace
[ch 6: pages 169-170]In 2013, workplace discrimination based on religious belief was in the news with four landmark cases decided in a combined judgment of the European Court of Human Rights (ECHR) (Eweida and Others v The United Kingdom Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10).
In summary, these cases decided that workers have the right to manifest (i.e. display) their individual faith in the workplace, for example by wearing religious adornments such as a cross, but that this is a qualified, not an absolute, right:
In the second of the four cases, the ECHR ruled that individuals are not allowed to manifest their faith at work by objecting to practices protected by other anti-discrimination laws, such as laws prohibiting discrimination against gay, lesbian and LBGT workers:
Ms Eweida, who staffed a British Airways (BA) checking desk and Ms Chaplin, a geriatric nurse, were both penalised for wearing a visible cross at work and brought claims for religious discrimination. Ms Eweida won her claim before the European Court of Human Rights (ECHR). The ECHR concluded that her right to manifest her religion under Article 9 of the European Convention on Human Rights (the ECHR) had been infringed. A fair balance had not been struck between her desire to wear a small visible cross to communicate her belief to others, and BA’s desire to project a particular corporate image. Other BA workers had been allowed to wear items of religious significance such as turbans and hijabs without impacting negatively on that image. BA had since amended the uniform code to permit the visible wearing of religious symbolic jewellery, demonstrating that it was not an issue of great importance to them.
By contrast, nurse Ms Chaplin lost her case because she had been asked to remove her cross at work for reasons of health and safety. The ECHR took the view that hospital managers were in a better position to judge issues of clinical safety than courts. Requiring her to remove the cross had not been disproportionate, and the interference with her freedom to manifest her religion was justified as necessary in a democratic society.
Eweida and Others v The United Kingdom Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10
In the second of the four cases, the ECHR ruled that individuals are not allowed to manifest their faith at work by objecting to practices protected by other anti-discrimination laws, such as laws prohibiting discrimination against gay, lesbian and LBGT workers:
Ms Ladele, a Registrar of births, marriages and deaths, and Mr McFarlane, a Relate counsellor, were dismissed for refusing to officiate over a civil partnership, or to counsel a gay couple. They were both practising Christians.
Ms Ladele and Mr McFarlane lost their cases. The ECHR said that their employers’ equal opportunities and anti-discrimination policies had the legitimate aim of securing the rights of others, such as same sex couples, which were also protected under the ECHR and which trumped the right to manifest religious views in these circumstances. Differences in treatment based on sexual orientation need particularly serious justification, said the ECHR, because same sex couples have the same needs for legal recognition and protection of their relationship as heterosexual couples.
The ECHR said it has a wide discretion when it comes to striking a balance between the employer’s need to protect the rights of others and the claimants’ right to manifest their religion. Here, the right balance had been struck by requiring the claimants to officiate at a civil partnership or to counsel a gay couple or else face dismissal, and no violation of the ECHR had taken place.
Eweida and Others v The United Kingdom Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10
The EHRC has revised its guidance on managing religion or belief in the workplace in the light of these cases. This can be found on their website (www.equalityhumanrights.com/publication/religion-or-belief-workplace-guide-employers-following-recent-european-court-human-rights-judgments).
In Chondol v Liverpool City Council [2009] UKEAT 0298/08/1102, a Christian mental health worker in charge of vulnerable adults was not subject to religious discrimination when she was dismissed for giving copies of the Bible to clients and visiting them outside of work unaccompanied, both of which were prohibited by the employer. Dismissing someone for proselytising (attempting to convert individuals to a faith) is not unlawful religious discrimination. Ms Chondol was not dismissed for manifesting her faith, but rather because she went about it in a way that breached the employer’s rules and policies.
Similarly, in Grace v Places for Children [2013] UKEAT 0217/13/0511, a claimant did not suffer religious discrimination when she was dismissed for holding unauthorised training sessions where she discussed the Bible, leading to complaints from co-workers, and for disturbing colleagues with frightening predictions linked to her religious beliefs, such as suggesting that a pregnant co-worker would lose her baby.
Acas produces a good practice guide on religious observance in the workplace: Religion and belief and the workplace: a guide for employers and employees, available from the Acas website (www.acas.org.uk/media/pdf/d/n/Religion-or-Belief-and-the_workplace-guide.pdf).